SCIALPI v. ISLAND RIGHT HOMES INC (2003)

In an action to recover damages for personal injuries, the defendant Island Right Homes, Inc., appeals from an order of the Supreme Court, Suffolk County (Berler J.), dated February 25, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The defendant landlord did not establish its prima facie entitlement to summary judgment.   There are triable issues of fact with respect to whether it created a dangerous condition by improperly installing a handrail on the subject premises (see Spencer v. Geiger, 269 A.D.2d 522, 523, 703 N.Y.S.2d 728).   In any event, even if the landlord did not create the allegedly defective condition, there are triable issues of fact with respect to whether the landlord had notice that the handrail was defective and, if so, whether the landlord was obligated to repair the defect (see Stalter v. Prudential Ins. Co. of Am., 220 A.D.2d 577, 578, 632 N.Y.S.2d 602;  cf.  Ross v. Lyndhurst, 290 A.D.2d 432, 433-434, 736 N.Y.S.2d 98).   The landlord's failure to sustain its burden required the denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).